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2nd Amend. Litigation Updates & Legal Discussion Discuss California 2A related litigation and legal topics here. All advice given is NOT legal counsel.

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  #241  
Old 12-26-2011, 5:12 PM
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So if this case were to swing our way, would this ONLY apply to those who have had guns prior? Or would it apply to first time owners as well? 10 day 'cooling off' period has to cut both ways doesn't it? They assume that a first time buyer may go out and commit some illegal act but don't cover for the scenario where the first time buyer may want to protect themselves? Like right away? Some thug trying to harm me, isn't going to wait 10 days...11 days in some cases.

But then again, those types of plaintiffs will probably be dead before they can argue that the 10 day wait killed them.
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  #242  
Old 12-26-2011, 5:22 PM
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Quote:
Originally Posted by kcbrown View Post
The problem is that the state need only come up with some sort of fantastical scenario in which the 10 day waiting period proves useful to the supposed interest of the state for the law to pass rational basis. I would be very hesitant to say that there's no possible way for the state to come up with such a scenario.
You're missing the second step. Once they come up with this supposed edge case then they have to show it actually happens and causes harm and the regulation actually helps keep it from causing harm.


Quote:
Originally Posted by kcbrown View Post
And yet, that's exactly how the court system treats rights it doesn't like.
And the only way to get them to stop is to challenge them to uphold nonsensical regulation that they can't find a basis for.
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Originally Posted by dfletcher View Post
Does the state issuing a COE factor in to this at all? I've never understood how it's allowed for me to skip the 10 day wait (when used with C & R FFL) on a 51 year old 1911, but not on a newly made 1911.
Yes. It's a wild violation of the equal protection clause.

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  #243  
Old 12-26-2011, 5:31 PM
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Quote:
Originally Posted by Dreaded Claymore View Post
Actually, the right to travel is a civil right, albeit one not enumerated in the Constitution (as far as I know). Driving motor vehicles is a very common way to exercise that right in the United States.

I think it's possible to conceive of a scheme that would pass Constitutional review, where (in the context of my right to keep and bear arms) I would need a (easily obtainable) license to own a pistol, but would not need any license at all to own a combat knife with which to stab fools.

But I'm not a lawyer, so what do I know.
You have a right to travel, but not the right to operate a motor vehicle.
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  #244  
Old 12-26-2011, 5:34 PM
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Isn't it interesting that a 10 day wait applies to guns in this state yet not cars. In a time when many police shootings are from the perception that a driver is trying to run over or hit LE.
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  #245  
Old 12-26-2011, 5:54 PM
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This is sweet! Just added 2 more guns to my collection last week and the 10 day wait pissed me off everyday. Such nonsense! To all involved, thanks!
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  #246  
Old 12-26-2011, 6:35 PM
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Originally Posted by hoffmang View Post
You're missing the second step. Once they come up with this supposed edge case then they have to show it actually happens and causes harm and the regulation actually helps keep it from causing harm.
Not to satisfy rational basis, they don't. That it's an enumerated Constitutional right doesn't change the calculus of rational basis. It only introduces the possibility that a higher level of scrutiny (if not an entirely different method of evaluation, e.g., categorical analysis) might be applicable.

Tons of laws would have been thrown out otherwise.


Quote:
And the only way to get them to stop is to challenge them to uphold nonsensical regulation that they can't find a basis for.
Here, I think, you vastly underestimate the ability of the human animal to find justification for that which cannot be justified.

Of course, they should be challenged to uphold such regulations anyway, because there's always the possibility (however slight) that we may win. But in doing so, we're almost certain to discover that which has been learned by many challengers in the past: that the judiciary has the ability to meet the challenge by making use of that well-honed (but certainly not unique) ability of theirs to justify the unjustifiable.


In this particular case, of course, nothing matters other than what the Supreme Court thinks, on the assumption they won't deny cert, and I do expect them to treat this with something more than rational basis. The 9th Circuit almost certainly won't.
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Last edited by kcbrown; 12-26-2011 at 7:10 PM..
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  #247  
Old 12-26-2011, 8:42 PM
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Originally Posted by taperxz View Post
You have a right to travel, but not the right to operate a motor vehicle.
You have a right to keep and bear arms, but not use modern firearms.


Go CGF!!!!!!!!!!!!!! A waiting period makes no sense at all.
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  #248  
Old 12-26-2011, 9:00 PM
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Originally Posted by sandman21 View Post
You have a right to keep and bear arms, but not use modern firearms.
That is a great analogy!

Yes, if you have the right to travel, then you have the right to use any means you choose as long as doing so does not violate someone else's rights or place the public in unusual amounts of danger.

I would argue that in the beginning, automobiles presented an unusual risk to the public, so it was perhaps permissible to call ownership and usage of them something other than a "right". But today, the risk is no longer unusual, simply because of how common automobile usage is today. Hence, I would say you certainly have the right to travel via automobile.

And the same is true of airplanes. They, too, are now commonly used enough that their use no longer present an unusual amount of risk to the public.


It is, after all, the unusual amount of risk that a given type of arm might present that takes its ownership and use out of the scope of the right, is it not?

It is not merely the lack of commonality of a given firearm type that should take it out of the scope of the right, and I really hope the Supreme Court agrees with me on that and clarifies that, because as it stands right now, their "common use" test can (and thus, eventually, will) be used to limit firearm ownership to nothing more advanced than 20th century arms that are already commonly owned by the people.
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  #249  
Old 12-26-2011, 9:12 PM
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Go CGF.

That is why I support ya. I have had lots of free-staters tell me that they are sure that legal methods are a waste of time and money.

They often don't understand that CA is (in many cases), leading the way for 2A rights!

But, I'll let them figure that out for themselves later.

.
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  #250  
Old 12-26-2011, 9:20 PM
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Quote:
Originally Posted by kcbrown View Post
Hence, I would say you certainly have the right to travel via automobile.
The DMV would disagree with this. Try refusing a BAC test and see if you get full due process before losing your license, for example.
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  #251  
Old 12-26-2011, 9:28 PM
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Originally Posted by dantodd View Post
The DMV would disagree with this. Try refusing a BAC test and see if you get full due process before losing your license, for example.
The government would, if it could, claim you have no rights at all.

Sorry, but the government that wishes to eliminate my rights is the last place I'd go looking for a decision on whether or not a given right exists.


It may be that the right is unrecognized by the government, but that's not the same thing. Otherwise, you'll have to agree that until we get a ruling on carry in public, we have no right to keep and bear arms in public in California, and have never had that right (as opposed to merely having that right continually infringed by the government. See the difference?).


We've gotten so used to having our rights infringed that we no longer even recognize the 9th Amendment to the Constitution ("The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people"). That needs to change, and quick. Otherwise, the enumerated rights really will be all we ever get (and even then, it'll be some watered down version of same).
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Last edited by kcbrown; 12-26-2011 at 9:37 PM..
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  #252  
Old 12-26-2011, 9:35 PM
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The state has said some people (C & R/COE holder) can buy some guns (C & R eigible) without a 10 day wait, I'm just wondering if this lesser interest the state evidently has in some guns can be exploited. The state obviously trusts me with C & R guns, or has less of an interest in making me wait 10 days.
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  #253  
Old 12-26-2011, 9:35 PM
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Your CA drivers license can be revoked for a plethora of things. Accidents, tickets, lack of insurance, FAILING TO PASS A MEDICAL OR WRITTEN TEST.

Not so with firearms. Even in this state except for fed rules. Which acknowledge state rules.
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  #254  
Old 12-26-2011, 9:40 PM
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Originally Posted by kcbrown View Post
Not to satisfy rational basis, they don't.
And Heller ruled rational basis right out. Read correctly it also ruled out intermediate scrutiny but that takes reading the dissent and being honest.

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  #255  
Old 12-26-2011, 9:43 PM
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Let's try again with the analogies and trend back to the OP.

-Brandon

Quote:
Some have made the argument, bordering on the frivolous, that only those arms in existence in the 18th century are protected by the Second Amendment. We do not interpret constitutional rights that way. Just as the First Amendment protects modern forms of communications, e.g., Reno v. American Civil Liberties Union, 521 U.S. 844, 849, 117 S.Ct. 2329, 138 L.Ed.2d 874 (1997), and the Fourth Amendment applies to modern forms of search, e.g., Kyllo v. United States, 533 U.S. 27, 35-36, 121 S.Ct. 2038, 150 L.Ed.2d 94 (2001), the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding.
D.C. v. Heller 128 S. Ct. (2008) at 2791. (Emphasis added.)
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  #256  
Old 12-26-2011, 10:02 PM
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Originally Posted by taperxz View Post
Your CA drivers license can be revoked for a plethora of things. Accidents, tickets, lack of insurance, FAILING TO PASS A MEDICAL OR WRITTEN TEST.

Not so with firearms. Even in this state except for fed rules. Which acknowledge state rules.
5150, MDVC, restraining order, other states can revoke your permission slip to own firearms as well. You assume that the SCOTUS will reject those ideas but there is nothing to prevent a state from setting up a system similar to driver license. The fact that CA treats a right as a privilege does not change the fact that it is still a right.


The 10 day wait clearly infringes on our 2A rights, just as much as the 90 day to 1 year wait for a LTC.
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  #257  
Old 12-26-2011, 10:09 PM
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Originally Posted by sandman21 View Post
5150, MDVC, restraining order, other states can revoke your permission slip to own firearms as well. You assume that the SCOTUS will reject those ideas but there is nothing to prevent a state from setting up a system similar to driver license. The fact that CA treats a right as a privilege does not change the fact that it is still a right.


The 10 day wait clearly infringes on our 2A rights, just as much as the 90 day to 1 year wait for a LTC.
Apples and oranges, as CGF has said many times there will be some sort of regulation regarding firearms. The 10 day wait may still be legal even after CGF wins this which I think they will. EDIT: for first time owners
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  #258  
Old 12-26-2011, 10:20 PM
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Originally Posted by hoffmang View Post
And Heller ruled rational basis right out. Read correctly it also ruled out intermediate scrutiny but that takes reading the dissent and being honest.
Heller should rule rational basis (even when disguised in the trappings of some higher form of scrutiny) right out, and will in any court that has any shred of honesty in it.

That makes this case an excellent measure of the integrity (or lack thereof) of the court that adjudicates it, probably more so than most.

I frankly can't wait to see what the courts do with it.
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  #259  
Old 12-26-2011, 10:20 PM
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Originally Posted by taperxz View Post
Apples and oranges, as CGF has said many times there will be some sort of regulation regarding firearms. The 10 day wait may still be legal even after CGF wins this which I think they will. EDIT: for first time owners
It's not apples to oranges, it is a very accurate comparison.

Didn't see where I said there would be no regulations.

Any waiting period infringes on the core right to keep and bear arms, self protection. I am supposed to wait 10 days to protect myself, 90 days to a year to protect myself in public or on my own property, simply because it is the first time I purchased a firearm. One of my litmus tests to see how strong a right we going to have is waiting periods. If a 10 day wait stands we are going to have a weak right.
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  #260  
Old 12-26-2011, 10:26 PM
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Originally Posted by sandman21 View Post
It's not apples to oranges, it is a very accurate comparison.

Didn't see where I said there would be no regulations.

Any waiting period infringes on the core right to keep and bear arms, self protection. I am supposed to wait 10 days to protect myself, 90 days to a year to protect myself in public or on my own property, simply because it is the first time I purchased a firearm. One of my litmus tests to see how strong a right we going to have is waiting periods. If a 10 day wait stands we are going to have a weak right.
I think it's very safe to say that the Supreme Court will not find a narrowly-constructed policy of separating a person from the exercise of a right under the Second for the duration of a background check. It's far less certain that you can convince 5 that there should be no first-time buyers' waiting period (though I agree there should not be).

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  #261  
Old 12-26-2011, 10:30 PM
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Originally Posted by sandman21 View Post
It's not apples to oranges, it is a very accurate comparison.

Didn't see where I said there would be no regulations.

Any waiting period infringes on the core right to keep and bear arms, self protection. I am supposed to wait 10 days to protect myself, 90 days to a year to protect myself in public or on my own property, simply because it is the first time I purchased a firearm. One of my litmus tests to see how strong a right we going to have is waiting periods. If a 10 day wait stands we are going to have a weak right.

No, apples and oranges, motor vehicles are not listed in the bill of rights. RKBA is. It's not illegal for a minor to own or use a firearm. They cant drive on public roads without a license, insurance ect.

The 10 day wait is a CA law and it's up to us to change it. The state may have a right to be allowed 10 days to process And see if you are prohibited from ownership. LTC's is a county problem. My county is about 30 days mostly because of training requirements.

In other words vehicles have nothing to do with guns in a comparison and it's up to you and others in your county to vote out your sheriff to expedite matters. as the law stands today

Last edited by taperxz; 12-26-2011 at 10:36 PM..
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  #262  
Old 12-26-2011, 10:33 PM
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Originally Posted by wildhawker View Post
I think it's very safe to say that the Supreme Court will not find a narrowly-constructed policy of separating a person from the exercise of a right under the Second for the duration of a background check. It's far less certain that you can convince 5 that there should be no first-time buyers' waiting period (though I agree there should not be).

-Brandon
To be clear, I should mention I also agree with this^^^. There really is no need for any wat period with modern day background checks.
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  #263  
Old 12-26-2011, 10:37 PM
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A background check takes what an hour? I completely agree that running a background check will be upheld and preventing a person from taking possession of the firearm before the time it takes to perform the test. You are completely correct that we might not find 5 to support that position, but I think if we don't we are going to see a very weak right. A wait period passed a background check to own or carry is so close to the right it used be one easily secured.
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  #264  
Old 12-26-2011, 10:40 PM
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Originally Posted by sandman21 View Post
A background check takes what an hour? I completely agree that running a background check will be upheld and preventing a person from taking possession of the firearm before the time it takes to perform the test. You are completely correct that we might not find 5 to support that position, but I think if we don't we are going to see a very weak right. A wait period passed a background check to own or carry is so close to the right it used be one easily secured.
In most states a background takes about a 10 minute call.
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Old 12-26-2011, 10:45 PM
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Originally Posted by wildhawker View Post
Let's try again with the analogies and trend back to the OP.

Quote:
Some have made the argument, bordering on the frivolous, that only those arms in existence in the 18th century are protected by the Second Amendment. We do not interpret constitutional rights that way. Just as the First Amendment protects modern forms of communications, e.g., Reno v. American Civil Liberties Union, 521 U.S. 844, 849, 117 S.Ct. 2329, 138 L.Ed.2d 874 (1997), and the Fourth Amendment applies to modern forms of search, e.g., Kyllo v. United States, 533 U.S. 27, 35-36, 121 S.Ct. 2038, 150 L.Ed.2d 94 (2001), the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding.
D.C. v. Heller 128 S. Ct. (2008) at 2791. (Emphasis added.)

Then explain how that meshes with this:

Quote:
Originally Posted by Heller Decision Syllabus
(f) None of the Court’s precedents forecloses the Court’s interpretation. Neither United States v. Cruikshank, 92 U. S. 542, 553, nor Presser v. Illinois, 116 U. S. 252, 264–265, refutes the individual rights interpretation. United States v. Miller, 307 U. S. 174, does not limit the right to keep and bear arms to militia purposes, but rather limits the type of weapon to which the right applies to those used by the militia, i.e., those in common use for lawful purposes.
and this:

Quote:
Originally Posted by Heller Decision
We also recognize another important limitation on the right to keep and carry arms. Miller said, as we have explained, that the sorts of weapons protected were those “in common use at the time.” 307 U. S., at 179. We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of “dangerous and unusual weapons.”
and this:


Quote:
Originally Posted by Heller Decision
It may be objected that if weapons that are most useful in military service—M-16 rifles and the like—may be banned, then the Second Amendment right is completely detached from the prefatory clause. But as we have said, the conception of the militia at the time of the Second Amendment’s ratification was the body of all citizens capable of military service, who would bring the sorts of lawful weapons that they possessed at home to militia duty. It may well be true today that a militia, to be as effective as militias in the 18th century, would require sophisticated arms that are highly unusual in society at large. Indeed, it may be true that no amount of small arms could be useful against modern-day bombers and tanks. But the fact that modern developments have limited the degree of fit between the prefatory clause and the protected right cannot change our interpretation of the right.
(emphasis added in all of the above)

Either the Second Amendment extends to all "instruments that constitute bearable arms" or it doesn't. Which is it? The Supreme Court is saying both simultaneously in Heller.

In fact, its argument in the last passage I quoted above is circular. A weapon that is banned by law is ipso facto a weapon that cannot be possessed at home and therefore cannot be brought to militia duty and, by the Supreme Court's argument, is therefore not protected by the 2nd Amendment. Therefore, the mere act of banning a firearm will bootstrap the ban into Constitutionality as long as the ban is put in place before the firearm in question becomes "common" in use.

No, it appears very much that the Supreme Court was merely waxing poetic when it said the passage you quoted, Brandon, and that it didn't really mean it.
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Last edited by kcbrown; 12-26-2011 at 10:54 PM..
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  #266  
Old 12-26-2011, 10:52 PM
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Damn. We're going to have to register long guns? I guess I'd better either buy my guns before 2014, or get equipment to start making them =]Z

Good luck with the lawsuit CGF!
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  #267  
Old 12-26-2011, 10:53 PM
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kcbrown - I am curious, what is your point here? I'm not trying to argue or disagree, just don't understand...... And,,, yes, I am clearly not even close to being a lawyer.

For the average Joe (like myself) SCOTUS was clear in Heller and McDonald that owning a gun IN YOUR HOME FOR YOUR OWN SELF DEFENCE, was constitutional.

What are you driving at... And sorry if I missed your point....

.
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Old 12-26-2011, 10:54 PM
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No, apples and oranges, motor vehicles are not listed in the bill of rights. RKBA is. It's not illegal for a minor to own or use a firearm. They cant drive on public roads without a license, insurance ect.
Many rights are not listed in the Constitution, so what? See the 9A. It's not illegal for a minor to own or use a vehicle. A minor cant get a LTC.


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The 10 day wait is a CA law and it's up to us to change it. The state may have a right to be allowed 10 days to process And see if you are prohibited from ownership. LTC's is a county problem. My county is about 30 days mostly because of training requirements.

In other words vehicles have nothing to do with guns in a comparison and it's up to you and others in your county to vote out your sheriff to expedite matters. as the law stands today
We are talking about a right being litigated in a court of law, not changing the position of a particular sheriff. Having access to a firearm for self protection is core to the 2A, a wait period more than it takes a background check, infringes so heavily on the core right that it should be a no brainier to overturn. However, if it is not overturned I think that is a sign that we wont have a robust 2A

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Old 12-26-2011, 11:05 PM
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Many rights are not listed in the Constitution, so what? See the 9A. It's not illegal for a minor to own or use a vehicle. A minor cant get a LTC.






Where do you come up with this? You have to be 18 NOW and licensed to drive on public roads and you can't own a car unless the owner can insure it. You can't get insurance without a license. No a minor can't get an LTC but they can own a firearm and defend themselves without concealing. Long guns.
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Old 12-26-2011, 11:10 PM
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A background check takes what an hour? I completely agree that running a background check will be upheld and preventing a person from taking possession of the firearm before the time it takes to perform the test. You are completely correct that we might not find 5 to support that position, but I think if we don't we are going to see a very weak right. A wait period passed a background check to own or carry is so close to the right it used be one easily secured.
While I find them disfavor-able, I think it's a real stretch to say that we'll have a "weak right" if there is some limited constitutionally-permissible waiting period. Once the person has the gun borne, they'll have the same capacity for lethal force as any other previously armed.

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Old 12-26-2011, 11:36 PM
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kcbrown - I am curious, what is your point here? I'm not trying to argue or disagree, just don't understand...... And,,, yes, I am clearly not even close to being a lawyer.
Me neither. I guess I might qualify for playing one on TV these days (mainly because you don't have to know a darned thing to play a character on TV anymore)....


My point with that last is that just because the Supreme Court claims in one sentence that the 2nd Amendment extends someplace, doesn't mean it really meant what it said. There's an enormous amount of weaseling that went into Heller: "sensitive places", "common use", "presumptively lawful", etc. They claim, for instance, that the scope of the right is that which was understood at the time of ratification, but they also say that laws prohibiting felony possession are "presumptively lawful" even though such laws didn't come into being until the early 1900s -- long after ratification.

While Heller may be clear as Supreme Court decisions go (I really cannot say), the internal contradictions to be found within it are enough to give me pause. We all have a pretty clear and reasonably consistent understanding of what the right to keep and bear arms should be, but the internal contradictions in Heller make it clear to me that the Supreme Court's views can easily be very different (and significantly more narrow).
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Old 12-27-2011, 1:15 AM
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Me neither. I guess I might qualify for playing one on TV these days (mainly because you don't have to know a darned thing to play a character on TV anymore)....


My point with that last is that just because the Supreme Court claims in one sentence that the 2nd Amendment extends someplace, doesn't mean it really meant what it said. There's an enormous amount of weaseling that went into Heller: "sensitive places", "common use", "presumptively lawful", etc. They claim, for instance, that the scope of the right is that which was understood at the time of ratification, but they also say that laws prohibiting felony possession are "presumptively lawful" even though such laws didn't come into being until the early 1900s -- long after ratification.

While Heller may be clear as Supreme Court decisions go (I really cannot say), the internal contradictions to be found within it are enough to give me pause. We all have a pretty clear and reasonably consistent understanding of what the right to keep and bear arms should be, but the internal contradictions in Heller make it clear to me that the Supreme Court's views can easily be very different (and significantly more narrow).
I don't think Heller was quite as contradictory as you seem to. What you describe as weaseling, I view as the majority being very careful not to have their decision reach beyond the boundaries of what was before them. Felons losing their rights clearly has a tradition in other areas of the law as well so I don't see it as all that out of the ordinary to view those laws as presumptively lawful.

You and I view the 2A world from two very different angles. Who knows, maybe my glasses are a bit rose colored, maybe your view is a bit pessimistic, but most likely is that its somewhere in between. My best guess is that the supremes (the 9 we've got now at least) will side with us much more often than with our opponents. Although I think your right that their views can and will be different than ours on some issues.
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Old 12-27-2011, 8:18 AM
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Where do you come up with this? You have to be 18 NOW and licensed to drive on public roads and you can't own a car unless the owner can insure it. You can't get insurance without a license. No a minor can't get an LTC but they can own a firearm and defend themselves without concealing. Long guns.


You do not need to be 18 to own a car. You do not need a license to drive a car. You need a license to drive on public highways and public parking lots. That leaves vast amounts of real estate where a minor can drive.

So to make your comparison again:

It's not illegal for a minor to own or use a firearm. They can not get a LTC in public.

It's not illegal for a minor to own or use a car. They can not get a license to drive on public highways.


Seems to me a firearm and a car are apples to apples.

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While I find them disfavor-able, I think it's a real stretch to say that we'll have a "weak right" if there is some limited constitutionally-permissible waiting period. Once the person has the gun borne, they'll have the same capacity for lethal force as any other previously armed.

-Brandon
A readily useable firearm for self-defense is a core right to the 2A; I would think that an arbitrary waiting period would not even trigger a level of review but not pass constitutional muster. The waiting period leaves the person defenseless, outside the time it takes to perform a background check. The only thing that burdens the core right more than waiting periods is a Chicago style ban. If waiting periods pass muster I fear that many of the regulations which burden the right less; roster, 1 in 30, mag. limit, would pass any level of review.
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Old 12-27-2011, 8:36 AM
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Your views are wrong and comparing a civil right to a privilege is dangerous!

Please stop! Firearms have the second amendment. Motor vehicles are a privilege.

STOP COMPARING THE TWO. It does you no good and shows ignorance.
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Old 12-27-2011, 9:14 AM
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Your views are wrong and comparing a civil right to a privilege is dangerous!

Please stop! Firearms have the second amendment. Motor vehicles are a privilege.

STOP COMPARING THE TWO. It does you no good and shows ignorance.
You have the right to travel, just not with modern machines.

This sounds fimilar.......

You have the right to keep and bear arms, just not modern firearms.


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Old 12-27-2011, 9:22 AM
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You have the right to travel, just not with modern machines.

This sounds fimilar.......

You have the right to keep and bear arms, just not modern firearms.


LOL!! Yes you can travel, even by modern machine, there is no right that grants YOU the ability to OPERATE that machine. Where the right to operate a gun is granted at birth!

As Brandon said, there may certain restrictions that still allow a right to be a strong right. Nothing in life has unfettered access. Not even air.
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Old 12-27-2011, 11:46 AM
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I was thinking about this last night. It is my understand that Federal courts cannot rewrite a law - they can only rule that it is constitutional or not. If they are not constitutional then the whole law is thrown out.

I recall seeing something like that happen with fireworks in another state. They wrote a new more restrictive fireworks law that was ruled unconstitutional and between the time that ruling came down and the time they wrote an acceptable bill they had no laws restricting fireworks and it was the wild wild west as far as fireworks went.

So even though the complaint speaks to subsequent purchase the law Penal Code does not distinguish between first and subsequent purchases. So is my reasoning correct that if the feds toss it then the 10 day wait is gone period - at least until the legislature gets back?

Then there's something about "serviceability" (IANAL). If they find that section of the PC unconstitutional would the whole section get tossed? If so, could they bag the 1 every 30 days limit at the same time?
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Old 12-27-2011, 12:10 PM
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We thought our friends at CA DOJ BoF needed some holiday cheer and more DROS fees next year! How can we not oblige?

I expect you'll hear more about this case from SAF on boxing day too.

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The DoJ banned cheer a long while back. Even so, it was a nice thought.
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Old 12-27-2011, 12:33 PM
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I was thinking about this last night. It is my understand that Federal courts cannot rewrite a law - they can only rule that it is constitutional or not. If they are not constitutional then the whole law is thrown out.

I recall seeing something like that happen with fireworks in another state. They wrote a new more restrictive fireworks law that was ruled unconstitutional and between the time that ruling came down and the time they wrote an acceptable bill they had no laws restricting fireworks and it was the wild wild west as far as fireworks went.

So even though the complaint speaks to subsequent purchase the law Penal Code does not distinguish between first and subsequent purchases. So is my reasoning correct that if the feds toss it then the 10 day wait is gone period - at least until the legislature gets back?

Then there's something about "serviceability" (IANAL). If they find that section of the PC unconstitutional would the whole section get tossed? If so, could they bag the 1 every 30 days limit at the same time?
Your right that courts don't re-write law. Only the legislature drafts the text of a law. However its not true that an entire law has to be thrown out if any of it is declared unconstitutional. In fact its generally quite the opposite, courts are supposed to rule in the most narrow way possible so their decision doesn't change anything more than necessary.

I believe the legal term your looking for is sever-ability, which would mean that a portion of a law can be severed and stricken as unconstitutional without having any effect on the rest of the PC. Its a concept more often seen in contract law when a particular clause of a contract is severed, declared unenforceable, and the rest of the contract is still enforced.
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Old 12-27-2011, 9:23 PM
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What will be interesting is how much the standard of review will be watered down, seeing as the plaintiffs' exercise of the core 2A right to use firearms in self defense is literally unaffected by the second waiting period. The plaintiff with the CCW is probably better situated than most gun owners in the state to exercise the core right and the waiting period does not put any restriction or limitation whatsoever on the possession/carry/use for self defense of the firearm(s) he already has, inside or outside of the home. The collector plaintiff just wants more guns, again with no reason alleged how the exercise of the core right to use his currently possessed firearms in self defense is impacted let alone burdened by having to wait 10 days to add another gun to his collection. "I want more guns" is what it boils down to. Similar to the "I want two-tone" plaintiff in the roster case. It's like, let's find a fact pattern as far away from the core right and as close to the margin of the right as we can (I want more guns just because) and plaintiffs who have less of a self-defense need for more firearms than most anybody else, and then we'll see just how weak of a standard of review we can get. How many other gun regulations are there where the argument can be made that the regulation does not burden the core right of self defense at all? True, acquisition of firearms is or should be protected activity (insofar as it corresponds to the core right to possess firearms for self-defense) and the second waiting period may be harder to justify than other regulations, but without a more compelling self-defense tie-in this lawsuit is not a good vehicle for heightened scrutiny.
Another well written, well reasoned analysis from our favorite, but easy-to-discover, hidden commentator. I do like you work.

But the basis for analysis is fundamentally, utterly wrong, in the normal FGG style.

If you read some of those old documents, like the US Constitution, you will
find that the people created the state to secure the rights of the people.
The state has right, no purpose, no reason, no being, no justification, no
interest, no rational basis for starting analysis from the point of view that
the people have no rights, and the state can ladle out a few privileges
from the tureen of state-owned-rights. There is no reason, save pure
exercise of power, for the state to argue this case. The state is not
in comport with its reason for being when it argues such an idiotic
position, that *some* people that already have firearms must somehow
wait 10 days to buy some other firearms in certain conditions. Other people
do not have to wait. Sure, people are perfectly free to assemble as many
firearms as they want with no waiting period. But purchase of a whole
functional firearm is not permitted.

Only a megalomaniac statist moron can argue there is some interest for
the state in this area. All rational, sane actors must conclude the state
has no viable position.

But we can expect Kamela to spend a $10M to exercise her ignorance.
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